Citation Nr: 0602206
Decision Date: 01/26/06 Archive Date: 01/31/06
DOCKET NO. 03-19 226 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Lincoln,
Nebraska
THE ISSUES
1. Entitlement to an extension of a temporary total
evaluation under 38 C.F.R. § 4.30 beyond December 31,
2002, for convalescence following surgery on the veteran's
service-connected right knee disability.
2. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
hepatitis C.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Tanya A. Smith, Counsel
INTRODUCTION
The veteran had active service from December 1972 to December
1975.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from October 2002 and January 2003 rating
decisions of the Department of Veterans Affairs (VA) Regional
Office (RO) in Lincoln, Nebraska.
The record shows that additional evidence was associated with
the claims files since the issuance of a Statement of the
Case (SOC) on the appealed issues. A review of the evidence
discloses that the evidence is duplicative or cumulative of
evidence previously considered by the RO or irrelevant to the
appealed issues so the issuance of a Supplemental Statement
of the Case pursuant to 38 C.F.R. § 19.37(a) was not
warranted.
In October 2003, the veteran canceled his personal hearing
before a Hearing Officer of the RO.
FINDINGS OF FACT
1. A temporary total evaluation with an extension was
assigned under 38 C.F.R. § 4.30 for the period from
August 12, 2002 to December 31, 2002, based on surgical
treatment of the service-connected right knee disability
requiring convalescence.
2. The medical evidence of record shows that as late as July
8, 2003, the veteran was unable to return to work as a truck
driver due to his right knee disability.
3. By an unappealed rating decision dated in May 1997, the
RO decided that the veteran's claim of entitlement to service
connection for hepatitis C was not well-grounded.
4. Evidence associated with the claims file after the RO's
May 1997 rating decision is cumulative or redundant of the
evidence of record at the time of the last prior final denial
of the claim, or does not raise a reasonable possibility of
substantiating the veteran's claim of entitlement to service
connection for hepatitis C.
CONCLUSIONS OF LAW
1. The criteria for an extension of a temporary total
evaluation under 38 C.F.R. § 4.30 beyond December 31,
2002 to the maximum extent permitted under §
4.30(b)(1), for convalescence following surgery on the
veteran's service-connected right knee disability have been
met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp.
2005); 38 C.F.R. § 4.30 (2005).
2. The May 1997 rating decision is final. 38 U.S.C.A. §
7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103
(1996).
3. New and material evidence has not been submitted, and the
claim of entitlement to service connection for hepatitis C is
not reopened. 38 U.S.C.A. §§ 5103, 5103A, 5108 (West 2002 &
Supp. 2005); 38 C.F.R. §§ 3.156, 3.159 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000, Pub. L. No. 106-
475, 114 Stat. 2096 (2000) (VCAA) redefines the obligations
of VA with respect to the duty to assist and includes an
enhanced duty to notify a claimant as to the information and
evidence necessary to substantiate a claim for VA benefits.
38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2005); 38
C.F.R. § 3.159 (2005). VA is required to provide the
claimant with notice of what information or evidence is to be
provided by the Secretary and what information or evidence is
to be provided by the claimant with respect to the
information and evidence necessary to substantiate the claim
for VA benefits. Quartuccio v. Principi, 16 Vet. App. 183,
187 (2002).
The Board finds that VA's enhanced duty to notify under the
VCAA has been met.
In this regard, the Board notes that in correspondence dated
in August 2002, the RO advised the veteran of VA's duties
under the VCAA and the delegation of responsibility between
VA and the veteran in procuring the evidence relevant to his
claim to reopen the previously disallowed claim for service
connection of hepatitis C, including which portion of the
information and evidence necessary to substantiate the claim
was to be provided by the veteran and which portion VA would
attempt to obtain on behalf of the veteran. Quartuccio, 16
Vet. App. at 187. The August 2002 VCAA notice advised the
veteran of what the evidence must show to reopen the
previously disallowed claim as well as what the evidence must
show to establish entitlement to service-connected
compensation benefits. The same information concerning VA's
notification and assistance duties under the VCAA was
provided to the veteran with respect to the paragraph 30
claim in correspondence dated in January 2003. The RO asked
the veteran to advise the RO of any treatment or medical
opinion that indicated that he was unable to work because of
his right knee disability. A follow-up 'duty to assist'
letter was mailed to the veteran in July 2003 on these two
issues.
The Board acknowledges that the August 2002 and January 2003
VCAA notices did not contain a specific request for the
veteran to provide any evidence in the veteran's possession
that pertained to the claims or something to the effect that
the veteran give VA everything he had that pertained to his
claims. 38 C.F.R. § 3.159(b)(1) (2005). A complying notice,
however, need not necessarily use the exact language of the
regulation so long as that notice properly conveys to a
claimant the essence of the regulation. Mayfield v.
Nicholson, 19 Vet. App. 103 (2005). The RO asked the veteran
for all the information and evidence necessary to
substantiate his claims-that is, evidence of the type that
should be considered by VA in assessing his claims. A
generalized request for any other evidence pertaining to the
claims would have been superfluous and unlikely to lead to
the submission of additional pertinent evidence. Therefore,
it can be concluded, based on the particular facts and
circumstances of the case, the omission of the request for
"any evidence in the claimant's possession that pertains to
the claim" in the notices did not harm the veteran, and it
would be legally proper to render a decision in the case
without further notice under the regulation. Id.
In further regard to VA's duty to notify, the Board notes
that the RO provided the veteran with a copy of the October
2002 rating decision, January 2003 rating decision, and May
2003 SOC, which included a discussion of the facts of the
claim, notification of the basis of the decision, and a
summary of the evidence used to reach the decision. The May
2003 SOC provided the veteran with notice of all the laws and
regulations pertinent to his claim, including the law and
implementing regulations of the VCAA and the new regulation
on 'new and material evidence' claims. The Board concludes
that the requirements of the notice provisions of the VCAA
have been met, and there is no outstanding duty to inform the
veteran that any additional information or evidence is
needed. Quartuccio, 16 Vet. App. at 187. The Board also
finds that the requirements under the law as pertains to new
and material evidence claims have been met with respect to
the hepatitis C claim.
As for the paragraph 30 claim, the RO obtained VA treatment
records identified by the veteran. The veteran has not made
the RO or the Board aware of any other evidence relevant to
his appeal that needs to be obtained. Based on the
foregoing, the Board finds that all relevant facts have been
properly and sufficiently developed in this appeal and no
further development is required to comply with the duty to
assist the veteran in developing the facts pertinent to his
claim. Accordingly, the Board will proceed with appellate
review.
Paragraph 30- Extension of Temporary Total Evaluation
A total disability rating will be assigned effective from the
date of a hospital admission or outpatient treatment and
continuing for a period of one, two, or three months from the
first day of the month following such hospital discharge or
outpatient release, if the hospital treatment of a service-
connected disability resulted in: (1) surgery necessitating
at least one month of convalescence; (2) surgery with severe
post-operative residuals such as incompletely healed surgical
wounds, stumps of recent amputations, therapeutic
immobilization of one major joint or more, application of a
body cast, or the necessity for house confinement, or the
necessity for continued use of a wheelchair or crutches
(regular weight-bearing prohibited); or (3) immobilization by
cast, without surgery, of one major joint or more. 38 C.F.R.
§ 4.30(a) (2005). Extensions of one, two, or three months
beyond the initial three months may be made under § 4.30(a).
38 C.F.R. § 4.30(b)(1) (2005).
Notations in the medical record as to the veteran's
incapacity to work after surgery must be taken into account
in the evaluation of a claim brought under the provisions of
38 C.F.R. § 4.30. Seals v. Brown, 8 Vet. App. 291, 296-297
(1995); Felden v. West, 11 Vet. App. 427, 430 (1998).
Furthermore, the term "convalescence" does not necessarily
entail in-home recovery. Id.
VA treatment records showed that the veteran underwent
surgeries on his service- connected right knee disability on
August 12, 2002 and August 30, 2002. In an October 2002
rating decision, the RO granted a temporary total evaluation
through October 31, 2002, because of treatment the veteran
received for his service-connected right knee disability
requiring convalescence. In a January 2003 rating decision,
the RO extended the temporary total evaluation for the
veteran's convalescence through to December 31, 2002, based
on a November 19, 2002 VA treatment record that showed that
the physician maintained that the veteran would be off work
for at least another five to six weeks.
Thereafter, VA treatment records dated in January and
February 2003 included no medical statement from a physician
indicating that the veteran was to remain off work after
December 2002 on account of his knee, but the veteran
contended that he was still unable to work in January 2003,
according to his Notice of Disagreement. A later VA
treatment record dated July 8, 2003 lends support to his
earlier contention. The record showed that the examiner
noted that the veteran's inability to work was probably due
in part to his right knee. The examiner then went on to
essentially indicate that it was not safe for the veteran to
return to work as a truck driver at that moment. Thus, the
Board finds that the veteran is entitled to an extension of
the temporary total evaluation under 38 C.F.R. § 4.30 beyond
December 31, 2002 to the end of February 2003.
New and Material Evidence- Hepatitis C
Under an earlier version of 38 C.F.R. § 3.156(a) (2001),
"new and material evidence" is defined as evidence not
previously submitted which bears directly and substantially
upon the specific matter under consideration, which is
neither cumulative nor redundant, and which by itself or in
connection with the evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001);
Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). When
determining whether the claim should be reopened, the
credibility of the newly submitted evidence is presumed.
Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In order
for evidence to be sufficient to reopen a previously
disallowed claim, it must be both new and material. If the
evidence is new, but not material, the inquiry ends and the
claim cannot be reopened. Smith v. West, 12 Vet. App. 312,
314 (1999). If it is determined that new and material
evidence has been submitted, the claim must be reopened. VA
may then proceed to evaluate the merits of the claim on the
basis of all evidence of record, but only after ensuring that
the duty to assist the veteran in developing the facts
necessary for his claim has been satisfied.
The definition of "new and material evidence" was revised
in August 2001 to require that the newly submitted evidence
relate to an unestablished fact necessary to substantiate the
claim and present the reasonable possibility of
substantiating the claim. 38 C.F.R. § 3.156 (2002). The
change in the law pertains to claims filed on or after August
29, 2001. Duty to Assist, 66 Fed. Reg. 45,620 (Aug. 29,
2001). The veteran's application to reopen his claim was
initiated in March 2002. Thus, the new definition of "new
and material evidence" discussed above is applicable to his
claim. The October 2002 rating decision and May 2003 SOC
show that the RO erroneously applied the old definition to
the veteran's claim, but this error did not prejudice the
veteran. The old definition is a more liberal standard and
the RO declined to reopen the claim and therefore would not
have reopened the veteran's claim under the more stringent
new definition.
A review of the claims file reveals that the veteran filed an
original claim for service connection of hepatitis in October
1996. In a May 1997 rating decision, the RO decided that the
veteran's claim of entitlement to service connection for
hepatitis C was not well-grounded. The RO determined that
the evidence failed to establish any relationship between
hepatitis C and any disease in service. Under cover of
letter dated in May 1997, the RO forwarded the veteran a copy
of the May 1997 rating decision along with VA Form 4107,
which explained the veteran's procedural and appeal rights.
The veteran, however, did not appeal the decision and it
became final in May 1998. 38 U.S.C.A. §§ 7105(c) (West
1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1996).
Evidence associated with the claims file prior to the RO's
last final denial in May 1997 follows.
In the veteran's original claim, he maintained that he
contracted hepatitis at the hospital in Fort Lewis,
Washington after knee surgery in 1973 or 1974.
Service medical records showed that the veteran was
hospitalized for hepatitis in January 1974. The veteran was
diagnosed with "hepatitis, hepatitis associated antigen
negative, type A" at that time. He reported using drugs
intravenously, including acid, Heroin, etc., having used one
to three months prior to admission. The records included lab
reports.
VA treatment records dated from December 1986 to April 1997
included an inpatient treatment record for December 1988 that
noted a diagnosis of acute hepatitis and drug abuse. Another
assessment noted probable acute hepatitis A and history of
hepatitis B. A January 1989 record reported on lab results
that showed hepatitis. Hepatitis A antibody positive was
noted on the record. The examiner provided an assessment of
recent hepatitis A and "healed" hepatitis B, positive
antibody. A November 1995 record noted a discharge diagnosis
of hepatitis C antibody positive with prior history of
hepatitis B.
A December 1996 VA general examination report showed that the
veteran reported that service examiners advised him that he
had non-A, non-B hepatitis that had been active for many
years. He further reported that he had been told in the
recent past that he had "hepatitis A, separate hepatitis B
and an active hepatitis C." He added that he had had
difficulty with alcohol and drug abuse for a long time. The
examiner provided a diagnosis of chronic active hepatitis,
possibly due to hepatitis B and hepatitis C.
Evidence associated with the claims file after the RO's last
final denial in May 1997 follows.
A November 1998 VA examination report noted that the veteran
was referred for an examination for purposes of a
determination as to what type of hepatitis he had in the
military in January 1974. The examiner reported that he
reviewed the claims file and service medical records. The
examiner discussed pertinent findings contained in these
records. The examiner provided an initial impression of
acute hepatitis in January 1974 with negative HAA [Australia
antigen test] tests. The examiner added that the veteran had
a subsequent acute episode of jaundice with hepatitis in
1988, with a positive test for hepatitis A antibody, but
noted that the test did not indicate whether the antibody was
an acute IgM antibody or otherwise. The examiner noted that
subsequent exams revealed evidence for hepatitis B and C, but
he maintained that it was not clear when these infections
might have been contracted.
The examiner commented that a determination had to be made as
to the specificity the old HAA test had for hepatitis A. In
notes added in January 1999, the examiner reported that after
a discussion with a pathologist, it was determined that the
old HAA test was for hepatitis B, so the examiner maintained
that this proved that the episode in service was not
hepatitis B. The examiner reported that the current
hepatitis serology was positive for hepatitis C as well as
hepatitis B, but for the surface antibody only. The examiner
added that the test was negative for acute hepatitis A as
would be expected. The examiner noted that it was his
opinion from this evidence that it was not known if the
hepatitis noted in service was A or C, adding that the
veteran had had both. The examiner, however, maintained that
the clinical picture was suggestive that it was hepatitis A,
from which the veteran made a full recovery in the normal
course.
VA treatment records dated from November 1999 to July 2004
showed that the veteran was followed for hepatitis C.
The Board finds that the November 1998 VA examination report
is new, but not material as it does not raise a reasonable
possibility of substantiating the claim. The VA examiner
acknowledged that it was not known if the hepatitis noted in
service was A or C, but determined that the veteran's
clinical picture was suggestive that he had hepatitis A.
Thus, the VA examiner's medical opinion presents no
reasonable possibility of substantiating the veteran's claim
that he contracted hepatitis C in service. The Board further
finds that while the VA treatment records are new, they are
not material as they are cumulative and redundant of evidence
of record at the time of the last prior final denial of the
claim that showed that the veteran was diagnosed with
hepatitis C. Accordingly, having determined that new and
material evidence has not been submitted, the claim is not
reopened.
ORDER
An extension of a temporary total evaluation under 38 C.F.R.
§ 4.30 beyond December 31, 2002 through February 2003 for
convalescence following surgery on the veteran's service-
connected right knee disability is granted.
New and material evidence having not been submitted, the
claim of entitlement to service connection for hepatitis C is
not reopened.
____________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs